ORDER : B. Amit Sthalekar, J. 1. Heard Shri S.V. Singh, learned counsel for the appellant, Shri Ajendra Kumar, learned counsel for the informant and Shri Ratan Singh, learned A.G.A. for the State. 2. The present criminal appeal has been filed against the judgment and order dated 16.9.2005 passed by the Sessions Judge, Etah in S.T. No. 714 of 2003 whereby the appellant has been convicted under section 302 I.P.C. and sentenced to life imprisonment with fine of Rs. 10,000/- and in default of payment of fine further imprisonment for one year. 3. A first information report was lodged by one Narendra Singh on 12.08.2003 at about 8.30 PM alleging therein that he alongwith his uncle Ahibaran Singh and his father Shishu Pal Singh were going from village Nagla Mohan, Thana Raja Ka Rampur, District Etah to attend an invitation in Village Gadhaiya and while they were on the way at about 6.00 PM accused Awadhesh s/o Baburam came on Rajdoot Motorcycle and with intention to kill he fired indiscriminately at his father Shishu Pal from his licensed double barrel gun and on receiving the fire arm injuries his father Shishu Pal fell down and died on the spot. This incident is stated to have been witnessed by several people present on the road and some other persons who were working in their fields but as soon as the incident took place these persons out of fear ran away in different directions. The informant left the body of deceased Shishu Pal on the spot and went to the police station and lodged the first information report. It is also stated in the F.I.R. that this incidence was also witnessed by his grandfather Sri Ramchandra. 4. The matter was investigated by the Investigation Officer Awadh Kishore Nigam, PW-4. The recovery memo was prepared and marked as Exhibit Ka-3, showing recovery of two empty cartridges of 12 Bore with K.F.12 As TRAM carved on its base. Thereafter the police collected samples of plain earth and blood stained earth from the spot which was marked as Exhibit Ka-4. 5. The recovery memo was prepared and marked as Exhibit Ka-3, showing recovery of two empty cartridges of 12 Bore with K.F.12 As TRAM carved on its base. Thereafter the police collected samples of plain earth and blood stained earth from the spot which was marked as Exhibit Ka-4. 5. On 23.08.2003 the Investigating Officer, S.O., A.K. Nigam alongwith Constable Surendra Pal and Constable Deendayal received information through informer (Mukhbir) that the weapon used in the murder was kept on the roof of the western side of the house of Awadhesh and therefore the Investigation Officer alongwith witnesses Devendra Singh s/o Shishu Pal and Ramchandra went to the house of the accused Awadhesh. Door of the house was open and there was no one in the house and in the presence of Awadhesh recovered the double barrel 12 bore gun No. 23573-92 on which Shiva Gun Factory Special E N 9 Steel India Ordinance Factory Tested was written in English. The gun had two triggers and two hammers. Smell of gun powder was also present in the barrel. This recovery has been marked as Exhibit Ka-9. 6. The post mortem of the dead body was conducted on the next date i.e. on 13.08.2003 at 1.00 PM by Dr. V.P. Bansal and following ante mortem injuries have been noted in the post mortem report: 1. Fire-arm wound of entry 1 cm. x 1 cm. on left side neck, just below angle of mandible. 2. Fire-arm wound of exit 1½ cm x 1¼ cm x through and through injury no. 1 on the right side lower part of neck. Direction left to right tattooing present on left side face around injury no. 1. 3. Fire-arm wound of entry 4 cm x 4 cm x on the left side top of shoulder and front of left shoulder. 4. Fire-arm wound of exit 10 cm x 6 cm x through and through injury no. 3 (on dissection 5 small pellets recovered from back of scapula) on the back left scapular region. Direction from front to back and downward. 5. Fire-arm wound of entry 5 cm x 4 cm x chest cavity deep on right side chest just above right nipple on dissection both lungs and heart lacerated. 6th, 7th and 8th ribs on right side fractured. 18 small pellets, recovered from chest cavity about one liter free and clotted blood present in chest. 6. 5. Fire-arm wound of entry 5 cm x 4 cm x chest cavity deep on right side chest just above right nipple on dissection both lungs and heart lacerated. 6th, 7th and 8th ribs on right side fractured. 18 small pellets, recovered from chest cavity about one liter free and clotted blood present in chest. 6. Gutter shaped injury 5 cm x 4 cm on right fore-arm, lower 1/3rd outer side from front to back (fire arm injury). The doctor also mentioned in the post mortem report that there was 200 ml. semi digested food in the stomach; Rigor Mortis passed from upper extremity but was present in the lower limbs. 7. The forensic science laboratory report dated 10.05.2004 with regard to the gun mentions that; one bullet of 12 bore was fired from the said gun from the right barrel whereas the second bullet was not fired from the said gun. 8. The Panchayatnama (Inquest) was conducted on the same date i.e. on 12.08.2003 at 9.15 P.M. but the said Panchayatnama also mentions that it was completed on 13.8.2003 at 8.30 p.m. and the body was sent for medical examination on 13.8.2003 at 8.30 p.m. At the outset we may note that in the printed form this does not appear to be correct as at the top of the inquest report itself it has been stated that the inquest commenced on 12.8.2003 at 21.15 p.m. and was completed on 13.8.2003 itself at 8.30 p.m. In the middle of the inquest report at its appropriate place in the printed form it has been mentioned that the body was sent for postmortem on 13.8.2003 at 8.30 p.m. which was clarified by the Investigating Officer, P.W. 4 subsequently to be due to clerical error whereas it is 8.30 a.m. on 13.8.2003. This means that the inquest was completed at 8.30 a.m. and immediately sent for postmortem. The postmortem report mentions the date and time it was conducted as 13.8.2003 at 1.00 p.m. which itself confirms the fact that the inquest could not have been completed on 13.8.2003 at 8.30 p.m. 9. PW.1 the informant, Narendra Singh in his examination-in-chief has stated that on 12.08.2003 he was going to village Gadhaiya alongwith his uncle Ahibaran Singh and father Shishu Pal Singh (deceased). His father was walking about 30-35 steps behind his uncle. PW.1 the informant, Narendra Singh in his examination-in-chief has stated that on 12.08.2003 he was going to village Gadhaiya alongwith his uncle Ahibaran Singh and father Shishu Pal Singh (deceased). His father was walking about 30-35 steps behind his uncle. As soon as he reached the border of the field of Ram Sanehi and Ram Prakash at about 6.00 PM the accused Awadhesh who was coming from behind on a Rajdoot Motorcycle, with the intention to kill his father opened indiscriminate fire upon him from his double barrel gun and upon being hit by the bullet, his father fell down and died on the spot. 10. The submissions of Shri S.P. Singh, learned counsel for the appellant are as under: 11. In the F.I.R. it is mentioned that there was some dispute between the family of the deceased and the accused with regard to the cattle of one Awadhesh of the same village Nagla Mohan Thana Raja Ka Rampur District Etah entering into the agricultural field of the accused. Learned counsel submits that the said incident which may have occurred one and half years previously of the present incident can hardly be said to cause an immediate grievance to the accused to commit murder of the deceased. 12. It is also submitted that the informant in the F.I.R. stated that there was indiscriminate firing whereas only four shots were fired. It is also submitted that the witnesses of recovery of gun, namely, Devendra Singh and Ram Chandra were never examined by the prosecution. Witnesses of recovery of empty cartridges 12 bore Ratiram and Kailash Chandra were never examined by the prosecution. 13. It is also submitted that the recovery of double barrel gun is shown to have been made on 23.8.2003 and it was mentioned that there was smell of gun powder which is not possible after 11 days of the incident. 14. The submission also is that post mortem report is shown to have been conducted on 13.8.2003 at 1.00 p.m. and mentions presence of 200 ml. of semi digested food in the stomach which is not possible if the incident occurred on 12.8.2003 at 6.00 p.m. 15. It is further submitted that the post mortem report mentions rigor mortis present having passed from the upper extremity but their presence in the lower limbs is also not possible after 18 hours as rigor mortis cannot last for 18 hours. It is further submitted that the post mortem report mentions rigor mortis present having passed from the upper extremity but their presence in the lower limbs is also not possible after 18 hours as rigor mortis cannot last for 18 hours. 16. The next submission of the learned counsel for the appellant is that in the site plan Ram Chandra, who is stated to be the grandfather of the informant Narendra Singh is shown by arrows to be coming from the opposite side, which is not correct as per site plan. 17. The next submission of the learned counsel for the appellant is that the inquest (Panchayatnama) is stated to have been commenced on 12.8.2003 at 21.15 hours (9.15 p.m.) and is shown to have been completed on 13.8.2003 at 8.30 p.m. which is normally not possible. 18. Learned counsel further submitted that the post mortem is also shown to have been conducted on 13.8.2003 at 1.00 p.m. which is in conflict with the Panchayatnama. 19. It is also submitted by the learned counsel for the appellant that the site plan is also shown to have been prepared on the night of the incident and mentions recovery of empty cartridges whereas the investigating officer Awdhesh Kishore Nigam in his statement on oath (at page 43 of the paper book) mentions recovery of two empty cartridges at 6 a.m. the next morning. 20. The submission further is that in the F.I.R. the incident is shown to have occurred in village Nagla Mohan whereas the inquest report mentions the place where the body was found as Bahad village Imadpur. In the site plan village Nagla Mohan is not mentioned rather village Imadpur is mentioned. 21. So far as the contention of the learned counsel for the appellant that there was no immediate motive for the accused to commit murder of the deceased is concerned, we find that as per the version of the F.I.R. the incident occurred at about 6 O'clock in the evening on 12.8.2003 which is summer/monsoon time and, therefore, there was still considerable day light and the incident has been witnessed by the informant Narendra Singh, P.W. 1 as also by P.W. 2 Ahibaran Singh, his uncle. The date and time of the incident has been reiterated by Narendra Singh (son of deceased Shishu Pal Singh) in his testimony before the court wherein he has stated that he and his uncle were walking about 30 - 35 steps behind the deceased and they were just about to reach the field of Ram Sanehi and Ram Prakash and at that time accused Awdhesh came from behind on a Rajdoot motorcycle and started indiscriminately firing at the deceased from a double barrel gun as a result of which deceased-Shishu Pal Singh fell on the ground and died. In his cross examination P.W. 1 has reiterated that the accused/appellant came on the motorcycle and moved 6 - 7 steps ahead and thereafter stopped the motorcycle and got down from it and after parking it fired at his father Shishu Pal Singh from his double barrel gun. At this point of time the distance between the accused and the deceased was about 5 - 6 steps and the accused had fired four shots within few seconds. 22. P.W. 2 in his testimony before the court has also stated that he and P.W. 1 were about 30 steps away from the deceased when the accused came from behind and with the intention to kill opened fire from a double barrel gun at Shishu Pal Singh who on receiving the fire arm injuries fell on the ground and died on the spot. He has clearly stated that at the time of incident it was about 6 O'clock in the evening. In his cross examination also this witness, P.W. 2 has stated that from the sound he came to know that there was a motorcycle coming from behind upon which he turned around to look. At the same time there were shouts and the motorcycle stopped to the north of his brother/deceased about 5 steps away. 23. We find that the FIR version of the incident has been corroborated by the testimonies of P.W. 1 and P.W. 2 and also in their cross examination and their testimony as to the incident and its sequence of events is intact. Moreover, the incident being a day light incident and having been witnessed by P.W. 1 and P.W. 2, therefore, in such circumstances motive becomes irrelevant. 24. In the case of Shardul Singh Vs. Moreover, the incident being a day light incident and having been witnessed by P.W. 1 and P.W. 2, therefore, in such circumstances motive becomes irrelevant. 24. In the case of Shardul Singh Vs. State of Haryana (2002) 8 SCC 372 , it has been held that:- "motive', which is not always capable of precise proof, if proved, may lead additional support to strengthen the probability of the commission of the offence by the person accused but the absence of motive does not ipso facto warrant an acquittal." 25. Similarly, in the case of Ravindra Kumar Vs. State of Punjab, (2001) 7 SCC 690 , the Apex Court has held that- "It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. It is therefore not possible to change the tide on account of the inability of the prosecution to prove the motive aspect to the guilt. 26. Similarly in the case of State of U.P. Vs. Baburam (2000) 4 SCC 515 it has been held that- "It is not possible to accept the view that motive may not be very much material in cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence. The question in this regard is whether the prosecution must fail because it failed to prove the motive or even whether inability to prove motive would be weaken the prosecution to any would be well and good for it, particularly in a case depending on circumstantial evidence, for such motive could then be counted as one of the circumstances. However, it is generally in a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the investigating officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law. However, it is generally in a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the investigating officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of offender to such a degree as to impel him to commit the murder cannot be construed as a fatal weakness of the prosecution." 27. Similarly, in the case Thaman Kumar Vs. State of Union Territory of Chandigarh, (2003) 6 SCC 380 , it has been held that- "There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. Hence in the facts and circumstances of the case, the absence of any evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which unerringly establishes the guilt of the accused." 28. Similarly, in the case of Yunis alias Kariya Vs. State of M.P. (2003) 1 SCC 425 , it has been held that- "Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. The ocular evidence is very clear and convincing in this case. The illegal acts of the accused persons have resulted in the death of a young boy of 18 years. It is settled law that establishment of motive is not a sine qua non for proving the prosecution case." 29. In (1973) 3 SCC 219 (Shivaji Genu Mohite Vs. The State of Maharashtra) the Supreme Court in paragraph 12 has held as under: "12. It is settled law that establishment of motive is not a sine qua non for proving the prosecution case." 29. In (1973) 3 SCC 219 (Shivaji Genu Mohite Vs. The State of Maharashtra) the Supreme Court in paragraph 12 has held as under: "12. As stated earlier, the fact that the prosecution in a given case has been able to discover a sufficient motive or not cannot weigh against the testimony of any eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such case if a motive is properly proved such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if a motive is not established the evidence of any eye-witness is rendered untrustworthy." 30. In (2017) 11 SCC 120 (Rajagopal Vs. Muthupandi alias Thavakkalai and Others) the Supreme Court in paragraph 14 has held as under: "14. Equally, it is well established that motive does not have to be established where there is direct evidence. Given the brutal assault made on PW-1 by criminals, the fact that witnesses have turned hostile can also cut both ways, as is well known in criminal jurisprudence." 31. So far as the post mortem report is concerned, P.W. 3 Dr. V.P. Bansal, Medical Officer District Hospital Etah has proved the post mortem report and has further stated that it is possible that the injuries were caused to the deceased on 12.8.2003 at 6.00 p.m. He has further stated that death has been caused due to ante mortem injuries. In his cross examination the P.W. 3 has stated that injury no. 3, relating to the fire arm wound on the left side of the shoulder and front side of the shoulder, has been caused from a distance of more than six ft. He has further stated that injury no. 3 is followed by exit wound being injury no. 4 in which small pellets were found and its direction was from front to back and downward. 32. He has further stated that injury no. 3 is followed by exit wound being injury no. 4 in which small pellets were found and its direction was from front to back and downward. 32. The court witness C.W.-1 Saidas, Assistant Director, F.S.L. Agra, who has examined the double barrel gun in respect of the two cartridges recovered from the spot, opined that E.C. 2 (cartridge) has not been fired from the double barrel gun but it is possible that E.C. 1 (cartridge) was fired from the said 12 bore double barrel. 33. Learned counsel for the appellant submitted that in the F.I.R. it has been stated that there was indiscriminate firing whereas only four shots were fired. In our opinion four shots being fired simultaneously can be described by any lay person as indiscriminate firing and it cannot be expected that the informant would at the time when such a criminal assault on the life of his father was taking place would have the presence of mind to count the number of shots fired. The post mortem report clearly proves that there were multiple fire arm injuries on the person of the deceased. Therefore the submission of the learned counsel is thoroughly misconceived. 34. Learned counsel for the appellant next submitted that the recovery of the 12 bore double barrel gun which is alleged to have been used in the crime is shown to have been recovered on 23.8.2019 i.e. about 11 days after the incident by Station Officer, Shri A.K. Nigam, Constable Surendra Pal and Constable Deen Dayal on the information received from a police informer from the house of the accused Awdhesh being hidden near the roof but the said recovery has not been proved by the investigating officer, Awadh Kishore Nigam. P.W. 4-Awadh Kishore Nigam in his testimony has proved the said recovery and stated that a 12 bore double barrel gun having no. 23573-92, Shiv Gun Factory Special EN 9, Indian Ordinance Factory was recovered from the roof of the house of the accused appellant which is marked as Ext. 9 and this witness has proved the said recovery. 35. Moreover, the court witness C.W. 2- Rajesh Kumar Sharma, a clerk in the office of the S.D.M. Aliganj has in his testimony stated that he had brought a renewal register of arm license in the trial and at sl. no. 9 and this witness has proved the said recovery. 35. Moreover, the court witness C.W. 2- Rajesh Kumar Sharma, a clerk in the office of the S.D.M. Aliganj has in his testimony stated that he had brought a renewal register of arm license in the trial and at sl. no. 151 which is dated 27.10.1999 has proved that the accused appellant had applied for renewal of the license of the said DB Gun and vide license no. 94 of a double barrel gun no. 23573 for which an entry is made in the register and he also deposited Rs. 160/- as fees and his license for this gun was renewed on 27.10.1999. This document is marked as Ext C-1 and has been proved by C.W. 2. 36. Learned counsel for the appellant submitted that the post mortem report was conducted on 13.8.2003 at 1 p.m. and mentions the presence of 200 ml of semi digested food in the stomach which is not possible if the incident had occurred on 12.8.2003 at 6.00 p.m. In our opinion the incident occurred at 6.00 p.m. on 12.8.2003, whose possibility was also affirmed by the Doctor P.W. 3 therefore, it is quite immaterial that if the post mortem was conducted on 13.8.2003 at 1.00 p.m. the presence of 200 ml. of semi digested food should be found in the stomach. P.W. 1 in his cross examination has clearly answered that he does not know whether his father the deceased had eaten food or not and has also stated that the deceased was with him for one hour previous to the incident and during this period he had not eaten anything. Thus from the testimony of this witness no such fact has come on record with regard to consumption of food by the deceased which might disprove the post mortem report which mentions presence of 200 ml. of semi digested food in the stomach of the deceased at 1.00 p.m. on the next day i.e. 13.8.2003. 37. Learned counsel for the appellant then submitted that the inquest is stated to have commenced on 12.3.2003 at 9.15 p.m. and is shown to have been completed on 13.8.2003 at 8.30 p.m., which is practically not possible. of semi digested food in the stomach of the deceased at 1.00 p.m. on the next day i.e. 13.8.2003. 37. Learned counsel for the appellant then submitted that the inquest is stated to have commenced on 12.3.2003 at 9.15 p.m. and is shown to have been completed on 13.8.2003 at 8.30 p.m., which is practically not possible. The investigating officer, Awdhesh Kishore Nigam, P.W. 4 in his cross examination with regard to this discrepancy of the time in the inquest report has stated that at two places he has mentioned 8.30 p.m. but it was actually 8.30 a.m. and by mistake he has mentioned as 8.30 p.m. We find that thereafter no question was put to the investigating officer in this regard, therefore, it must be presumed that the inquest was conducted on 13.8.2003 at 8.30 a.m. and not on 13.8.2003 at 8.30 p.m. 38. The submission of the learned counsel for the appellant that the post mortem report Ext. Ka-12 mentions the timing of the same as 1.00 p.m. on 13.8.2003, which is not possible if the inquest itself was conducted on 13.8.2003 at 8.30 p.m. In our opinion, the very fact that the post mortem was conducted on 13.8.2003 at 1.00 p.m. would corroborate the statement of the investigating officer that the time of 8.30 p.m. mentioned in the inquest was wrongly mentioned as such due to clerical error and that it was actually 8.30 a.m. on 13.8.2003. This fact is also confirmed from the statement of the investigating officer and the documents on record, namely, Ext. Ka-4 which is the inquest report which was sent alongwith the sealed body for post mortem in the custody of two police constables. 39. Learned counsel for the appellant next submitted that in the F.I.R. the incident is shown to have occurred near Nagla Mohan whereas the inquest report mentions the place where the dead body was found as Bahad village Imadpur and in the site plan, Ex. Ka-2 also village Nagla Mohan is not mentioned rather village Imadpur is mentioned. From the F.I.R. what we find is that Nagla Mohan is mentioned as the village where the informant was residing and from where his father i.e. the deceased and he alongwith his uncle, Ahibaran were going to attend an invitation in village Garhiya Harve. Ka-2 also village Nagla Mohan is not mentioned rather village Imadpur is mentioned. From the F.I.R. what we find is that Nagla Mohan is mentioned as the village where the informant was residing and from where his father i.e. the deceased and he alongwith his uncle, Ahibaran were going to attend an invitation in village Garhiya Harve. In the inquest report we find that Bahad village Imadpur is mentioned as the place where the dead body was found. In the site plan Ext. Ka-2 the site where the deceased was fired upon is marked with the alphabet 'B' and it is a place opposite the agricultural field of one Ram Sanehi s/o Rati Ram r/o Imadpur. Therefore, we do no find any illegality or irregularity in the mentioning of village Imadpur either in the inquest report or in the site plan. 40. The next submission of the learned counsel for the appellant is that the site plan Ext. Ka-2 is shown to have been prepared on 12.8.2003 itself in the night of the incident whereas the recovery of two empty cartridges Ext. Ka-3 is shown to have been prepared on 13.8.2003. In his testimony the investigating officer, P.W. 4 has stated that this recovery of the two empty cartridges was made by him at 6 O'clock in the morning alongwith recovery of blood stained and plain earth, Ext. Ka-3 and Ka-4 respectively. We do not find any peculiar circumstances in the site plan being prepared in the night of the incident itself or the recovery of E.C. -2 and blood stained and plain earth at 6.00 a.m. for the reason that the Investigating Officer in his evidence has also stated that it was already 12 O'clock midnight and that he had stayed at the site in the night. In the circumstances it can hardly be expected of the investigating officer to search for plain earth and blood stained earth or empty cartridges in the middle of the night on a village road where there are no lights. 41. In the circumstances it can hardly be expected of the investigating officer to search for plain earth and blood stained earth or empty cartridges in the middle of the night on a village road where there are no lights. 41. The learned counsel for the appellant next submitted that as per the postmortem report which was conducted on 13.08.2003 at 1:00 pm, rigor mortis had passed from the upper extremity and was present in the lower limbs and, therefore, he submitted that if the death had occurred at 6:00 pm on 12.8.2003 as per the case of the prosecution, the rigor mortis could not have lasted more than 18 hours. Reference has been made to Medical Jurisprudence by Parikh's (seventh Edition) and also by Modi. We find that the medical opinion with regard to rigor mortis as expressed by J.P. Modi is that in Indian climatic conditions the duration of rigor mortis is 24 to 48 hours in winter and 18 to 36 hours in summer. In the present case, we find that the postmortem was conducted on 13.8.2003 at 1:00 pm and it is mentioned therein that rigor mortis had passed from the upper extremity but was present in the lower limbs. As per prosecution version death of the deceased occurred on 12.8.2003 at 6:00 pm, the previous evening and, therefore, by the time postmortem was conducted it was beyond 18 hours. The P.W.-3 Dr. V.P. Bansal who conducted the postmortem, in his testimony has clearly stated that from the injuries and the condition of the body it is possible that the deceased had died at about 6 o'clock in the evening of 12.8.2003. In this view of the matter, we do not find any discrepancy or error in the postmortem report regarding rigor mortis. 42. Learned counsel for the appellant then submitted that the recovery memo of the empty cartridges (Exbt. Ka-3) was made on 13.8.2003 by the Investigating Officer in the presence of witnesses Shri Kailash Chandra and Shri Ratiram but these witnesses were never produced by the prosecution in the trial and, therefore, the recovery memo in respect of recovery of the empty cartridges has not been proved. Ka-3) was made on 13.8.2003 by the Investigating Officer in the presence of witnesses Shri Kailash Chandra and Shri Ratiram but these witnesses were never produced by the prosecution in the trial and, therefore, the recovery memo in respect of recovery of the empty cartridges has not been proved. He also submitted that the recovery of the alleged weapon, namely, the double barrel gun stated to have been used in the murder is stated to have been recovered from the house of the accused and in the presence of witnesses Shri Devendra Singh and Shri Ram Chandra but these witnesses were also never produced by the prosecution during the trial and, therefore, the alleged weapon of murder could not be linked to the accused nor the empty cartridges be linked with the murder weapon and, therefore, the chain of events is not complete. So far as the recovery of the weapon from the house of the accused is concerned, the Investigating Officer in his evidence has testified that on 23.8.2003 he had recovered the double barrel gun no. 23573-92 with Shiva Gun Factory Special E N 9 Steel India Ordinance Factory Tested imprinted on it from the house of the accused hidden under the roof in the presence of witnesses Shri Ram Chandra and Shri Devendra Singh and had prepared the recovery memo (Ex. Ka-9) and had also recorded the statements of the witnesses Sri Ram Chandra and Shri Devendra Singh on the same date and also prepared a map of the spot from where recovery was made. From the evidence of the Investigating Officer Awadh Kishore Nigam it is found that no further question was put to the witness P.W.-4 Awadh Kishore Nigam (IO) by the defence during the trial with regard to this recovery. In fact it appears that the only question put to the P.W.-4 in cross examination by the defence was as to from where the offending weapon was recovered to which the witness replied that it was recovered from the house of the accused. He has also stated that he does not know as to how the double barrel gun used in the murder came to be found under the roof in the house of the accused. He has also stated that he does not know as to how the double barrel gun used in the murder came to be found under the roof in the house of the accused. Constable Surendra Pal Singh, P.W.-6 who was also a witness of the recovery of double barrel gun from the house of the accused was examined in the trial and his testimony was recorded but from the record it was found that no question was put to him either in examination in chief or in cross examination with regard to the recovery of the murder weapon from the house of the accused. We have gone through the entire testimony of the P.W.-4 and we have no reason to doubt the credibility or reliability of the same. 43. The Supreme Court in (2013) 7 SCC 278 (Ganga Singh Vs. State of Madhya Pradesh) in paragraphs 12 and 13 has held as under: "12. According to Mr. Mehrotra, however, PW-5 is not a reliable witness as she has made a significant omission in her evidence by not stating anything about the seizure of the blouse, dhoti and broken bangles which were made in her presence. But we find that no question has been put to PW-5 in cross-examination with regard to seizure of the blouse, dhoti and broken bangles in her presence. If the appellant's case was that PW-5 cannot be believed because she made this significant omission in her evidence, a question in this regard should have been put to her during her cross-examination. To quote Lord Herschell, LC in Browne vs. Dunn [(1893) 6 R 67]: ".........it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross examination showing that the imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit." 13. Section 146 of the Indian Evidence Act also provides that when a witness is cross-examined, he may be asked any question which tend to test his veracity. Yet no question was put to PW-5 in cross-examination on the articles seized in her presence. In the absence of any question with regard to the seizure of the blouse, dhoti and broken bangles in presence of PW-5, omission of this fact from her evidence is no ground to doubt the veracity of her evidence." 44. With regard to the recovery memo of the empty cartridges (Ex. Ka-3) again we may refer to the testimony of the P.W.-4 Investigating Officer who has clearly stated that by the time they left from the Thana to the site of murder it was almost 8:30 pm and by the time they inspected the spot and prepared the site plan it was almost 12 O'clock midnight and, therefore, he stayed there till morning and in the morning at about 6:00 am he recovered two empty cartridges (Ex. Ka-3) and blood stained earth and plain earth (Ex. Ka-4) and prepared the recovery memo. The Investigating Officer has also stated that Panchnama was carried out in the morning (Ex. Ka-4) and the statements of witnesses Ratiram and Kailash Chandra were also recorded. The recovery memo of empty cartridges (Ex. Ka-3) mentions the names of Ratiram and Kailash Chandra as witnesses but these witnesses have not been produced in the trial nor their statements have been recorded. We find from the testimony of the P.W.-4 Investigating Officer that no question has been put to him to create a doubt with regard to the recovery memo of blood stained earth and plain earth and his statement with regard to Ex. Ka-3 that two empty cartridges were recovered from the site is left unrebutted nor have we reasons to disbelieve the statement of the Investigating Officer in this regard. 45. There is another interesting aspect of the matter, namely, that as per the report of the Forensic Science Laboratory Ext. Ka-16 it is stated that at least one of the empty cartridges was fired from the said gun. The offending gun has been recovered from the house of the accused. 45. There is another interesting aspect of the matter, namely, that as per the report of the Forensic Science Laboratory Ext. Ka-16 it is stated that at least one of the empty cartridges was fired from the said gun. The offending gun has been recovered from the house of the accused. The fact that the gun belonged to the accused has been proved in the testimony of C.W.-2 Rajesh Kumar Sharma who has produced his License Renewal Register and on page 10 at Sr. no. 151 there is an entry that renewal of the license of the said gun license no. 94 double barrel gun no. 23573 dated 27.10.1999 has been made in the name of Awadesh S/o Babu Ram resident of Nagla Mohan i.e. the accused herein and the license fee of Rs. 160/- has also been deposited by the said Awadesh. Therefore, considering all these facts we have absolutely no reason to take a different view other than that that the double barrel gun/weapon involved in the murder was used in the murder of the deceased and was recovered from the house of the accused and the mere fact that the two witnesses of the recovery of the empty cartridges (Ex. Ka-3) and the two witnesses of the recovery memo (Ex. Ka-9) have not been produced in the trial would not vitiate the trial. 46. The Supreme Court in (2012) 4 SCC 722 , Govindaraju Alias Govinda Vs. State by Sriramapuram Police Station and Another, in paragraph 67 has held as under:- "67. We are certainly not indicating that despite all this, the statement of the Police Officer for recovery and other matters could not be believed and form the basis of conviction but where the statement of such witness is not reliable and does not aspire confidence, then the accused would be entitled to the benefit of doubt in accordance with law. Mere absence of independent witnesses when the Investigating Officer recorded the statement of the accused and the article was recovered pursuant thereto, is not a sufficient ground to discard the evidence of the Police Officer relating to recovery at the instance of the accused. {See State Government of NCT of Delhi v. Sunil & Anr. [ (2001) 1 SCC 652 ]}. {See State Government of NCT of Delhi v. Sunil & Anr. [ (2001) 1 SCC 652 ]}. Similar would be the situation where the attesting witnesses turn hostile, but where the statement of the Police Officer itself is unreliable then it may be difficult for the Court to accept the recovery as lawful and legally admissible. The official acts of the Police should be presumed to be regularly performed and there is no occasion for the courts to begin with initial distrust to discard such evidence." 47. We also find from the evidence on record that the murder of the deceased Sishu Pal Singh was committed on 12.08.2003 at 6:00 pm. in the evening in the month of August. The murder was witnessed by his son Narendra Singh P.W.-1 the informant and uncle of Narendra Singh, namely, Sri Ahbharan Singh P.W.-2. There is sufficient day light and it is nobody's case that it had become dark and that visibility was poor. The P.W.-1 and P.W.-2 in their testimony have reiterated the contents of the FIR in detail and clearly stated that they were walking alongwith the deceased and going from their village Nagla Mohan to attend an invitation and having gone some distance the accused came from behind on a motorcycle and stopped ahead of the deceased and from a very close distance fired at the deceased from the offending double barrel gun resulting in his instantaneous death. We find that the defence/appellants having not succeeded in impeaching the testimony of informant P.W.-1 or the testimony of the P.W.-2, therefore, the ocular evidence of P.W.-1 and P.W.-2 being strong and unimpeachable, we have no reason to discard or disbelieve the same and we find that the prosecution has clearly established the chain of events and there is no break in the link. 48. The learned counsel for the appellant submitted that the incident is stated to have occurred on 12.8.2003 whereas the recovery of the double barrel gun was made on 23.8.2003 and the Investigating Officer P.W.-4 has in the recovery memo (Ex. Ka-9) stated that when the barrel of the gun was opened it was smelling of gun powder (barood) which cannot be possible after 11 days. Ka-9) stated that when the barrel of the gun was opened it was smelling of gun powder (barood) which cannot be possible after 11 days. In our opinion, in the light of our finding with regard to the recovery of the weapon it becomes immaterial as to whether there was a possibility of smell of gun powder being present or not. At the same time, it also cannot be ruled out that the smell of gun powder could not have been present once it was established from FSL reports and ballistic report that it was possible that cartridge EC 1 was fired from the offending double barrel gun. 49. The next submission of the learned counsel for the appellant is that in the FIR it is stated that the incident was witnessed by the grandfather of the informant Shri Ram Chandra and that this entry has been made in the FIR in a different handwriting. The P.W.-1 in his testimony has clearly stated that the incident was witnessed by his grandfather Ram Chandra who was coming from the south from Aliganj side. P.W.-2 Ahibaran who is the uncle of the informant, in his evidence has also stated that Ram Chandra was coming from the Aliganj side and he also witnessed the incident but in the site plan the said Ram Chandra is shown to be coming from the opposite side. The site plan is Ex. Ka-2 wherein the presence of Ram Chandra is marked with the alphabet 'E'. The arrows are shown coming from the side of Village Nagla Mohan towards Imadpur alongwith the deceased and the spot where the deceased has been fired upon is marked by the alphabet 'B' which is opposite the agricultural field of Ram Sanehi S/o Ratiram and Prakash S/o Hazari Lal. The map clearly shows Ram Chandra represented by alphabet 'E' coming from Aliganj side and going towards the deceased and the witnesses P.W.-1 and P.W.-2. The accused is shown coming from the same side as the informant and P.W.-2 and then after firing at spot 'B' he is shown making good his escape towards the direction shown as Aliganj. The movement of the accused is shown by the sign 'arrow with single cut'. The accused is shown coming from the same side as the informant and P.W.-2 and then after firing at spot 'B' he is shown making good his escape towards the direction shown as Aliganj. The movement of the accused is shown by the sign 'arrow with single cut'. This corroborates the statement of P.W.-1 and P.W.-2 that the accused had come from behind and after going a few steps ahead of the deceased has stopped his motorcycle and had got down and then fired upon deceased killing him at the spot. Movement of Ram Chandra is shown by alphabet 'E' and the direction of his movement is shown by the 'arrow with three cuts' which shows him coming from Aliganj side towards 'B'. Thus, the movement of Ram Chandra is corroborated by the testimony of P.W.-1 and P.W.-2 and the site plan Ext. Ka-2 and we do not find any illegality or infirmity either in the site plan or any discrepancy with the same in the testimony of P.W.-1 and P.W.-2. 50. The submission that the name of Ram Chandra has been added in the FIR in a different hand writing would in the circumstances become irrelevant for the reason that the FIR was lodged at 8:30 pm after the incident had occurred at 6 pm on the same date and in any case, the appellant has not been able to establish that the presence of Ram Chandra in the FIR has been added at a subsequent point of time rather it further buttresses the case of the prosecution. Even otherwise, Ram Chandra was not produced as a witness in the trial by the prosecution. We, therefore, do not find any illegality in the finding recorded by the trial court. 51. Otherwise also from the evidence brought on record we find that the prosecution has succeeded in proving the case against the appellant and there is no reason to disbelieve the prosecution witnesses and the trial court has rightly convicted and sentenced the appellant, as aforesaid. 52. For the reasons aforesaid, we do not find any illegality or infirmity in the judgment of the trial court. The conviction and sentence of the appellant awarded by the trial court is upheld. The criminal appeal lacks merit and is accordingly dismissed. 53. The appellant Awadhesh is in jail. 52. For the reasons aforesaid, we do not find any illegality or infirmity in the judgment of the trial court. The conviction and sentence of the appellant awarded by the trial court is upheld. The criminal appeal lacks merit and is accordingly dismissed. 53. The appellant Awadhesh is in jail. He shall be kept there to serve out the sentences, as awarded by the trial court and affirmed by us. 54. Office is directed to send a copy of this order to the court below for compliance. The lower court's record shall also be transmitted to the court below.